Parker v. LevyAnnotate this Case
417 U.S. 733 (1974)
U.S. Supreme Court
Parker v. Levy, 417 U.S. 733 (1974)
Parker v. Levy
Argued February 20, 1974
Decided June 19, 1974
417 U.S. 733
APPEAL FROM THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Article 90(2) of the Uniform Code of Military Justice (Code) provides for punishment of any person subject to the Code who "willfully disobeys a lawful command of his superior commissioned officer"; Art. 133 punishes a commissioned officer for "conduct unbecoming an officer and a gentleman"; and Art. 134 (the general article) punishes any person subject to the Code for, inter alia, "all disorders and neglects to the prejudice of good order and discipline in the armed forces," though not specifically mentioned in the Code. Appellee, an Army physician assigned to a hospital, was convicted by a general court-martial of violating Art. 90(2) for disobeying the hospital commandant's order to establish a training program for Special Forces aide men, and of violating Arts. 133 and 134 for making public statements urging Negro enlisted men to refuse to obey orders to go to Vietnam and referring to Special Forces personnel as "liars and thieves," "killers of peasants," and "murderers of women and children." After his conviction was sustained within the military and he exhausted this avenue of relief, appellee sought habeas corpus relief in the District Court, challenging his conviction on the ground that both Art. 133 and Art. 134 are "void for vagueness" under the Due Process Clause of the Fifth Amendment and overbroad in violation of the First Amendment. The District Court denied relief, but the Court of Appeals reversed, holding that Arts. 133 and 134 are void for vagueness, that, while appellee's conduct fell within an example of Art. 134 violations contained in the Manual for Courts-Martial, the possibility that the articles would be applied to others' future conduct as to which there was insufficient warning, or which was within the area of protected First Amendment expression, was enough to give appellee standing to challenge both articles on their face, and that the joint consideration of the Art. 90 charges gave rise to a "reasonable possibility" that appellee's right to a fair trial was prejudiced, so that a new trial was required.
1. Articles 133 and 134 are not unconstitutionally vague under the Due Process Clause of the Fifth Amendment. Pp. 417 U. S. 752-757.
(a) Each article has been construed by the United States Court of Military Appeals or by other military authorities, such as the Manual for Courts-Martial, so as to limit its scope, thus narrowing the very broad reach of the literal language of the articles, and at the same time supplying considerable specificity by way of examples of the conduct that they cover. Pp. 417 U. S. 752-755.
(b) The articles are not subject to being condemned for specifying no standard of conduct at all, but are of the type of statutes which, "by their terms or as authoritatively construed, apply without question to certain activities, but whose application to other behavior is uncertain," Smith v. Goguen,415 U. S. 566, 415 U. S. 578. Pp. 417 U. S. 755-756.
(c) Because of the factors differentiating military from civilian society, Congress is permitted to legislate with greater breadth and flexibility when prescribing rules for the former than when prescribing rules for the latter, and the proper standard of review for a vagueness challenge to Code articles is the standard that applies to criminal statutes regulating economic affairs, and that standard was met here, since appellee could have had no reasonable doubt that his statements urging Negro enlisted men not to go to Vietnam if ordered to do so was both "unbecoming an officer and gentleman" and "to the prejudice of good order and discipline in the armed forces," in violation of Arts. 133 and 134, respectively. Pp. 417 U. S. 756-757.
2. Nor are Arts. 133 and 134 facially invalid because of overbreadth. Pp. 417 U. S. 757-761.
(a) Doctrines of First Amendment overbreadth asserted in support of challenges to imprecise language like that contained in Arts. 133 and 134 are not exempt from the operation of the principles that, while military personnel are not excluded from First Amendment protection, the fundamental necessity for obedience, and the consequent necessity for discipline, may render permissible within the military that which would be constitutionally impermissible outside it. Pp. 417 U. S. 758-759.
(b) There is a wide range of conduct to which Arts. 133 and 134 may be applied without infringing the First Amendment, and while there may be marginal applications in which First Amendment values would be infringed, this is insufficient to invalidate either article at appellee's behest. His conduct in publicly urging enlisted personnel to refuse to obey orders which might send them into combat was unprotected under the most expansive notions of the First Amendment, and Arts. 133 and 134
may constitutionally prohibit that conduct, and a sufficiently large number of similar or related types of conduct so as to preclude their invalidation for overbreadth. Pp. 417 U. S. 760-761.
3. Appellee's contention that, even if Arts. 133 and 134 are constitutional, his conviction under Art. 90 should be invalidated because to carry out the hospital commandant's order would have constituted participation in a war crime and because the commandant gave the order, knowing it would be disobeyed, for the sole purpose of increasing appellee's punishment, is not of constitutional significance, and is beyond the scope of review, since such defenses were resolved against appellee on a factual basis by the court-martial that convicted him. P. 417 U. S. 761.
478 F.2d 772, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and POWELL, JJ., joined. BLACKMUN, J., filed a concurring statement, in which BURGER, C.J., joined, post, p. 417 U. S. 762. DOUGLAS, J., filed a dissenting opinion, post, p. 417 U. S. 766. STEWART, J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined, post, p. 417 U. S. 773. MARSHALL, J., took no part in the consideration or decision of the case.
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Appellee Howard Levy, a physician, was a captain in the Army stationed at Fort Jackson, South Carolina.
He had entered the Army under the so-called "Berry Plan," [Footnote 1] under which he agreed to serve for two years in the Armed Forces if permitted first to complete his medical training. From the time he entered on active duty in July, 1965, until his trial by court-martial, he was assigned as Chief of the Dermatological Service of the United States Army Hospital at Fort Jackson. On June 2, 1967, appellee was convicted by a general court-martial of violations of Arts. 90, 133, and 134 of the Uniform Code of Military Justice, and sentenced to dismissal from the service, forfeiture of all pay and allowances, and confinement for three years at hard labor.
The facts upon which his conviction rests are virtually undisputed. The evidence admitted at his court-martial trial showed that one of the functions of the hospital to which appellee was assigned was that of training Special Forces aide men. As Chief of the Dermatological Service, appellee was to conduct a clinic for those aide men. In the late summer of 1966, it came to the attention of the hospital commander that the dermatology training of the students was unsatisfactory. After investigating the program and determining that appellee had totally neglected his duties, the commander called appellee to his office and personally handed him a written order to conduct the training. Appellee read the order, said that he understood it, but declared that he would not obey it because of his medical ethics. Appellee persisted in his refusal to obey the order, and later reviews of the program established that the training was still not being carried out.
During the same period of time, appellee made several public statements to enlisted personnel at the post of which the following is representative:
"The United States is wrong in being involved in
the Viet Nam War. I would refuse to go to Viet Nam if ordered to do so. I don't see why any colored soldier would go to Viet Nam: they should refuse to go to Viet Nam, and, if sent, should refuse to fight because they are discriminated against and denied their freedom in the United States, and they are sacrificed and discriminated against in Viet Nam by being given all the hazardous duty and they are suffering the majority of casualties. If I were a colored soldier, I would refuse to go to Viet Nam, and if I were a colored soldier and were sent, I would refuse to fight. Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children."
Appellee's military superiors originally contemplated nonjudicial proceedings against him under Art. 15 of the Uniform Code of Military Justice, 10 U.S.C. § 815, but later determined that court-martial proceedings were appropriate. The specification under Art. 90 alleged that appellee willfully disobeyed the hospital commandant's order to establish the training program, in violation of that article, which punishes anyone subject to the Uniform Code of Military Justice who "willfully disobeys a lawful command of his superior commissioned officer." [Footnote 2] Statements to enlisted personnel were
listed as specifications under the charges of violating Arts. 133 and 134 of the Code. Article 133 provides for the punishment of "conduct unbecoming an officer and a gentleman," [Footnote 3] while Art. 134 proscribes, inter alia, "all disorders and neglects to the prejudice of good order and discipline in the armed forces." [Footnote 4]
The specification under Art. 134 alleged that appellee
"did, at Fort Jackson, South Carolina, . . . with design to promote disloyalty and disaffection among the troops, publicly utter [certain] statements to divers enlisted personnel at divers times. . . . [Footnote 5]"
The specification under
Art. 133 alleged that appellee did "while in the performance of his duties at the United States Army Hospital . . . wrongfully and dishonorably" make statements variously described as intemperate, defamatory, provoking, disloyal, contemptuous, and disrespectful to Special Forces personnel and to enlisted personnel who were patients or under his supervision. [Footnote 6]
Appellee as convicted by the court-martial, and his conviction was sustained on his appeals within the military. [Footnote 7] After he had exhausted this avenue of relief, he sought federal habeas corpus in the United States District Court for the Middle District of Pennsylvania, challenging his court-martial conviction on a number of grounds. The District Court, on the basis of the voluminous record of the military proceedings and the argument of counsel, denied relief. It held that the "various articles of the Uniform Code of Military Justice are not unconstitutional for vagueness," citing several decisions
of the United States Court of Military Appeals. [Footnote 8] The court rejected the balance of appellee's claims without addressing them individually, noting that the military tribunals had given fair consideration to them and that the role of the federal courts in reviewing court-martial proceedings was a limited one.
The Court of Appeals reversed, holding in a lengthy opinion that Arts. 133 and 134 are void for vagueness. 478 F.2d 772 (CA3 1973). The court found little difficulty in concluding that, "as measured by contemporary standards of vagueness applicable to statutes and ordinances governing civilians," the general articles "do not pass constitutional muster." It relied on such cases as Grayned v. City of Rockford,408 U. S. 104 (1972); Papachristou v. City of Jacksonville,405 U. S. 156 (1972); Giaccio v. Pennsylvania,382 U. S. 399 (1966); Coates v. City of Cincinnati,402 U. S. 611 (1971), and Gelling v. Texas,343 U. S. 960 (1952). The Court of Appeals did not rule that appellee was punished for doing things he could not reasonably have known constituted conduct proscribed by Art. 133 or 134. Indeed, it recognized that his conduct fell within one of the examples of Art. 134 violations contained in the Manual for Courts-Martial, promulgated by the President by Executive Order. [Footnote 9] Nonetheless, relying chiefly on Gooding v. Wilson,405 U. S. 518 (1972), the Court found the possibility that Arts. 133 and 134 would be applied to future conduct of others as to which there was insufficient warning, or which was within the area of protected First Amendment expression, was enough to give
appellee standing to challenge both articles on their face. While it acknowledged that different standards might in some circumstances be applicable in considering vagueness challenges to provisions which govern the conduct of members of the Armed Forces, the Court saw in the case of Arts. 133 and 134 no
"countervailing military considerations which justify the twisting of established standards of due process in order to hold inviolate these articles, so clearly repugnant under current constitutional values."
Turning finally to appellee's conviction under Art. 90, the Court held that the joint consideration of Art. 90 charges with the charges under Arts. 133 and 134 gave rise to a "reasonable possibility" that appellee's right to a fair trial was prejudiced, so that a new trial was required.
Appellants appealed to this Court pursuant to 28 U.S.C. § 1252. We set the case for oral argument, and postponed consideration of the question of our jurisdiction to the hearing on the merits. 414 U.S. 973 (1973). [Footnote 10]
This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that "it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise." United States ex rel. Toth v. Quarles,350 U. S. 11, 350 U. S. 17 (1955). In In re Grimley,137 U. S. 147, 137 U. S. 153 (1890), the Court observed:
"An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer or the duty of obedience in the soldier."
More recently, we noted that "[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian," Orloff v. Willoughby,345 U. S. 83, 345 U. S. 94 (1953), and that "the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty. . . ." Burns v. Wilson,346 U. S. 137, 346 U. S. 140 (1953) (plurality opinion). We have also recognized that a military officer holds a particular position of responsibility and command in the Armed Forces:
"The President's commission . . . recites that 'reposing special trust and confidence in the patriotism, valor, fidelity and abilities' of the appointee, he is named to the specified rank during the pleasure of the President."
Orloff v. Willoughby, supra, at 345 U. S. 91.
Just as military society has been a society apart from civilian society, so "[m]ilitary law . . . is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment." Burns v. Wilson, supra, at 346 U. S. 140. And to maintain the discipline essential to perform its mission effectively, the military has developed what "may not unfitly be called the customary military law" or "general usage of the military service." Martin v. Mott, 12 Wheat. 19, 25 U. S. 35 (1827). As the opinion in Martin v. Mott demonstrates, the Court has approved the enforcement of those military customs and usages by courts-martial from the early days of this Nation:
". . . Courts Martial, when duly organized, are bound to execute their duties, and regulate their modes of proceeding, in the absence of positive enactments.
Upon any other principle, Courts Martial would be left without any adequate means to exercise the authority confided to them, for there could scarcely be framed a positive code to provide for the infinite variety of incidents applicable to them."
Id. at 25 U. S. 35-36.
An examination of the British antecedents of our military law shows that the military law of Britain had long contained the forebears of Arts. 133 and 134 in remarkably similar language. The Articles of the Earl of Essex (1642) provided that
"[a]ll other faults, disorders and offenses not mentioned in these Articles shall be punished according to the general customs and laws of war."
One of the British Articles of War of 1765 made punishable "all Disorders or Neglects . . . to the Prejudice of good Order and Military Discipline . . ." that were not mentioned in the other articles. [Footnote 11] Another of those articles provided:
"Whatsoever Commissioned Officer shall be convicted before a General Court-martial of behaving in a scandalous infamous Manner such as is unbecoming the Character of an Officer and a Gentleman shall be discharged from Our Service. [Footnote 12]"
In 1775, the Continental Congress adopted this last article, along with 68 others for the governance of its army. [Footnote 13] The following year, it was resolved by the Congress that
"the committee on spies be directed to revise the rules and articles of war, this being a committee of five, consisting of John Adams, Thomas Jefferson, John
Rutledge, James Wilson and R. R. Livingston. . . . [Footnote 14]"
The article was included in the new set of articles prepared by the Committee, which Congress adopted on September 20, 1776. [Footnote 15] After being once more reenacted without change in text in 1786, it was revised and expanded in 1806, omitting the terms "scandalous" and "infamous," so as to read:
"Any commissioned officer convicted before a general court-martial of conduct unbecoming an officer and a gentleman, shall be dismissed [from] the service. [Footnote 16]"
From 1806, it remained basically unchanged through numerous congressional reenactments until it was enacted as Art. 133 of the Uniform Code of Military Justice in 1951.
The British article punishing "all Disorders and Neglects . . ." was also adopted by the Continental Congress in 1775 and reenacted in 1776. [Footnote 17] Except for a revision in 1916, which added the clause punishing "all conduct of a nature to bring discredit upon the military service," [Footnote 18] substantially the same language was preserved throughout the various reenactments of this article too, until, in 1951, it was enacted as Art. 134 of the Uniform Code of Military Justice.
Decisions of this Court during the last century have recognized that the longstanding customs and usages
of the services impart accepted meaning to the seemingly imprecise standards of Arts. 133 and 134. In Dynes v. Hoover, 20 How. 65 (1857), this Court upheld the Navy's general article, which provided that
"[a]ll crimes committed by persons belonging to the navy which are not specified in the foregoing articles shall be punished according to the laws and customs in such cases at sea."
The Court reasoned:
"[W]hen offences and crimes are not given in terms or by definition, the want of it may be supplied by a comprehensive enactment, such as the 32d article of the rules for the government of the navy, which means that courts martial have jurisdiction of such crimes as are not specified, but which have been recognised to be crimes and offences by the usages in the navy of all nations, and that they shall be punished according to the laws and customs of the sea. Notwithstanding the apparent indeterminateness of such a provision, it is not liable to abuse; for what those crimes are, and how they are to be punished, is well known by practical men in the navy and army, and by those who have studied the law of courts martial, and the offences of which the different courts martial have cognizance."
Id. at 61 U. S. 82. In Smith v. Whitney,116 U. S. 167 (1886), this Court refused to issue a writ of prohibition against Smith's court-martial trial on charges of "[s]candalous conduct tending to the destruction of good morals" and "[c]ulpable inefficiency in the performance of duty." The Court again recognized the role of "the usages and customs of war" and "old practice in the army" in the interpretation of military law by military tribunals. Id. at 116 U. S. 178-179.
In United States v. Fletcher,148 U. S. 84 (1893), the Court considered a court-martial conviction under what is
now Art 133, rejecting Captain Fletcher's claim that the court-martial could not properly have held that his refusal to pay a just debt was "conduct unbecoming an officer and a gentleman." The Court of Claims decision which the Court affirmed in Fletcher stressed the military's "higher code termed honor, which holds its society to stricter accountability" [Footnote 19] and with which those trained only in civilian law are unfamiliar. In Swaim v. United States,165 U. S. 553 (1897), the Court affirmed another Court of Claims decision, this time refusing to disturb a court-martial conviction for conduct "to the prejudice of good order and military discipline" in violation of the Articles of War. The Court recognized the role of "unwritten law or usage" in giving meaning to the language of what is now Art. 134. In rejecting Swaim's argument that the evidence failed to establish an offense under the article, the Court said:
"[T]his is the very matter that falls within the province of courts-martial, and in respect to which their conclusions cannot be controlled or reviewed by the civil courts. As was said in Smith v. Whitney,116 U. S. 178,"
"of questions not depending upon the construction of the statutes, but upon unwritten military law or usage, within the jurisdiction of courts-martial, military or naval officers, from their training and experience in the service, are more competent judges than the courts of common law."
165 U.S. at 165 U. S. 562. The Court of Claims had observed that cases involving "conduct to the prejudice of good order and military discipline," as opposed to conduct unbecoming an officer,
"are still further beyond the bounds of ordinary judicial judgment, for they are not measurable by our innate
sense of right and wrong, of honor and dishonor, but must be gauged by an actual knowledge and experience of military life, its usages and duties. [Footnote 20]"
The differences noted by this settled line of authority, first between the military community and the civilian community, and second between military law and civilian law, continue in the present day under the Uniform Code of Military Justice. That Code cannot be equated to a civilian criminal code. It, and the various versions of the Articles of War which have preceded it, regulate aspects of the conduct of members of the military which in the civilian sphere are left unregulated. While a civilian criminal code carves out a relatively small segment of potential conduct and declares it criminal, the Uniform Code of Military Justice essays more varied regulation of a much larger segment of the activities of the more tightly knit military community. In civilian life there is no legal sanction -- civil or criminal -- for failure to behave as an officer and a gentleman; in the military world, Art. 133 imposes such a sanction on a commissioned officer. The Code likewise imposes other sanctions for conduct that, in civilian life is not subject to criminal penalties: disrespect toward superior commissioned officers, Art. 89, 10 U.S.C. § 889; cruelty toward, or oppression or maltreatment of subordinates, Art. 93, 10 U.S.C. § 893; negligent damaging, destruction, or wrongful disposition of military property of the United States, Art. 108, 10 U.S.C. § 908; improper hazarding of a vessel, Art. 110, 10 U.S.C. § 910; drunkenness on duty, Art. 112, 10 U.S.C. § 912; and malingering, Art. 115, 10 U.S.C. § 915.
But the other side of the coin is that the penalties provided in the Code vary from death and substantial
penal confinement at one extreme to forms of administrative discipline which are below the threshold of what would normally be considered a criminal sanction at the other. Though all of the offenses described in the Code are punishable "as a court-martial may direct," and the accused may demand a trial by court-martial, [Footnote 21] Art. 15 of the Code also provides for the imposition of nonjudicial "disciplinary punishments" for minor offenses without the intervention of a court-martial. 10 U.S.C. § 815. The punishments imposable under that article are of a limited nature. With respect to officers, punishment may encompass suspension of duty, arrest in quarters for not more than 30 days, restriction for not more than 60 days, and forfeiture of pay for a limited period of time. In the case of enlisted men, such punishment may additionally include, among other things, reduction to the next inferior pay grade, extra fatigue duty, and correctional custody for not more than seven consecutive days. Thus, while legal proceedings actually brought before a court-martial are prosecuted in the name of the Government, and the accused has the right to demand that he be proceeded against in this manner before any sanctions may be imposed upon him, a range of minor sanctions for lesser infractions are often imposed administratively. Forfeiture of pay, reduction in rank, and even dismissal from the service bring to mind the law of labor-management relations as much as the civilian criminal law.
In short, the Uniform Code of Military Justice regulates a far broader range of the conduct of military personnel than a typical state criminal code regulates of the conduct of civilians; but, at the same time, the enforcement of that Code in the area of minor offenses
is often by sanctions which are more akin to administrative or civil sanctions than to civilian criminal ones.
The availability of these lesser sanctions is not surprising in view of the different relationship of the Government to members of the military. It is not only that of lawgiver to citizen, but also that of employer to employee. Indeed, unlike the civilian situation, the Government is often employer, landlord, provisioner, and law-giver rolled into one. That relationship also reflects the different purposes of the two communities. As we observed in In re Grimley, 137 U.S. at 137 U. S. 153, the military "is the executive arm" whose "law is that of obedience." While members of the military community enjoy many of the same rights and bear many of the same burdens as do members of the civilian community, within the military community, there is simply not the same autonomy as there is in the larger civilian community. The military establishment is subject to the control of the civilian Commander in Chief and the civilian departmental heads under him, and its function is to carry out the policies made by those civilian superiors.
Perhaps because of the broader sweep of the Uniform Code, the military makes an effort to advise its personnel of the contents of the Uniform Code, rather than depending on the ancient doctrine that everyone is presumed to know the law. Article 137 of the Uniform Code, 10 U.S.C. § 937, requires that the provisions of the Code be "carefully explained to each enlisted member at the time of his entrance on active duty, or within six days thereafter," and that they be "explained again after he has completed six months of active duty. . . ." Thus, the numerically largest component of the services, the enlisted personnel, who might be expected to be a good deal less familiar with the Uniform Code than commissioned officers, are required by its terms
to receive instructions in its provisions. Article 137 further provides that a complete text of the Code and of the regulations prescribed by the President "shall be made available to any person on active duty, upon his request, for his personal examination."
With these very significant differences between military law and civilian law and between the military community and the civilian community in mind, we turn to appellee's challenges to the constitutionality of Arts. 133 and 134.
Appellee urges that both Art. 133 and Art. 134 (the general article) are "void for vagueness" under the Due Process Clause of the Fifth Amendment and overbroad in violation of the First Amendment. We have recently said of the vagueness doctrine:
"The doctrine incorporates notions of fair notice or warning. Moreover, it requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent 'arbitrary and discriminatory enforcement.' Where a statute's literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts."
Smith v. Goguen,415 U. S. 566, 415 U. S. 572-573 (1974). Each of these articles has been construed by the United States Court of Military Appeals or by other military authorities in such a manner as to at least partially narrow its otherwise broad scope.
The United States Court of Military Appeals has stated that Art. 134 must be judged "not in vacuo, but in the context in which the years have placed it," United States v. Frantz, 2 U.S.C.M.A. 161, 163, 7
C.M.R. 37, 39 (1953). Article 134 does not make "every irregular, mischievous, or improper act a court-martial offense," United States v. Sadinsky, 14 U.S.C.M.A. 563, 565, 34 C.M.R. 343, 345 (1964), but its reach is limited to conduct that is "directly and palpably -- as distinguished from indirectly and remotely -- prejudicial to good order and discipline.'" Ibid.; United States v. Holiday, 4 U.S.C.M.A. 454, 456, 16 C.M.R. 28, 30 (1954). It applies only to calls for active opposition to the military policy of the United States, United States v. Priest, 21 U.S.C.M.A. 564, 45 C.M.R. 338 (1972), and does not reach all "[d]isagreement with, or objection to, a policy of the Government." United States v. Harvey, 19 U.S.C.M.A. 539, 544, 42 C.M.R. 141, 146 (1971).
The Manual for Courts-Martial restates these limitations on the scope of Art. 134. [Footnote 22] It goes on to say that "[c]ertain disloyal statements by military personnel" may be punishable under Art. 134.
"Examples are utterances designed to promote disloyalty or disaffection among troops, as praising the enemy, attacking the war aims of the United States, or denouncing our form of government. [Footnote 23]"
Extensive additional interpretative materials are contained in the portions of the Manual devoted to Art. 134, which describe more than sixty illustrative offenses.
The Court of Military Appeals has likewise limited the scope of Art. 133. Quoting from W. Winthrop, Military Law and Precedents 711-712 (2d ed.1920), that court has stated:
"" . . . To constitute therefore the conduct here denounced, the act which forms the basis of the charge must have a double significance and effect.
Though it need not amount to a crime, it must offend so seriously against law, justice, morality or decorum as to expose to disgrace, socially or as a man, the offender, and at the same time must be of such a nature or committed under such circumstances as to bring dishonor or disrepute upon the military profession which he represents.'""
United States v. Howe, 17 U.S.C.M.A. 165, 177-178, 37 C.M.R. 429, 441-442 (1967).
The effect of these constructions of Arts. 133 and 134 by the Court of Military Appeals and by other military authorities has been twofold: it has narrowed the very broad reach of the literal language of the articles, and, at the same time, has supplied considerable specificity by way of examples of the conduct which they cover. It would be idle to pretend that there are not areas within the general confines of the articles' language which have been left vague despite these narrowing constructions. But even though sizable areas of uncertainty as to the coverage of the articles may remain after their official interpretation by authoritative military sources, further content may be supplied even in these areas by less formalized custom and usage. Dynes v. Hoover, 20 How. 65 (1857). And there also cannot be the slightest doubt under the military precedents that there is a substantial range of conduct to which both articles clearly apply without vagueness or imprecision. It is within that range that appellee's conduct squarely falls, as the Court of Appeals recognized:
"Neither are we unmindful that the Manual for Courts-Martial offers as an example of an offense under Article 134, 'praising the enemy, attacking the war aims of the United States, or denouncing our form of government.' With the possible exception of the statement that 'special Forces personnel are liars
and thieves and killers of peasants and murderers of women and children,' it would appear that each statement for which [Levy] was court-martialed could fall within the example given in the Manual."
478 F.2d at 794.
The Court of Appeals went on to hold, however, that, even though Levy's own conduct was clearly prohibited, the void-for-vagueness doctrine conferred standing upon him to challenge the imprecision of the language of the articles as they might be applied to hypothetical situations outside the considerable area within which their applicability was similarly clear.
We disagree with the Court of Appeals both in its approach to this question and in its resolution of it. This Court has on more than one occasion invalidated statutes under the Due Process Clause of the Fifth or Fourteenth Amendment because they contained no standard whatever by which criminality could be ascertained, and the doctrine of these cases has subsequently acquired the shorthand description of "void for vagueness." Lanzetta v. New Jersey,306 U. S. 451 (1939); Winters v. New York,333 U. S. 507 (1948). In these cases, the criminal provision is vague
"not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all."
But the Court of Appeals found in this case, and we agree, that Arts. 133 and 134 are subject to no such sweeping condemnation. Levy had fair notice from the language of each article that the particular conduct which he engaged in was punishable. This is a case, then, of the type adverted to in Smith v. Goguen, in which the statutes,
"by their terms or as authoritatively
construed apply without question to certain activities, but whose application to other behavior is uncertain."
415 U.S. at 415 U. S. 578. The result of the Court of Appeals' conclusion that Levy had standing to challenge the vagueness of these articles as they might be hypothetically applied to the conduct of others, even though he was squarely within their prohibitions, may stem from a blending of the doctrine of vagueness with the doctrine of overbreadth, but we do not believe it is supported by prior decisions of this Court.
We have noted in Smith v. Goguen, id. at 415 U. S. 573, that more precision in drafting may be required because of the vagueness doctrine in the case of regulation of expression. For the reasons which differentiate military society from civilian society, we think Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which the former shall be governed than it is when prescribing rules for the latter. But each of these differentiations relates to how strict a test of vagueness shall be applied in judging a particular criminal statute. None of them suggests that one who has received fair warning of the criminality of his own conduct from the statute in question is nonetheless entitled to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit. One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.
Because of the factors differentiating military society from civilian society, we hold that the proper standard of review for a vagueness challenge to the articles of the Code is the standard which applies to criminal statutes regulating economic affairs. Clearly, that standard is
"The strong presumptive validity that attaches to an Act of Congress has led this Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language. E.g., Jordan v. De George,341 U. S. 223, 341 U. S. 231 (1951), and United States v. Petrillo,332 U. S. 1, 332 U. S. 7 (1947). Indeed, we have consistently sought an interpretation which supports the constitutionality of legislation. E.g., United States v. Rumely,345 U. S. 41, 345 U. S. 47 (1953); Crowell v. Benson,285 U. S. 22, 285 U. S. 62 (1932); see Screws v. United States,325 U. S. 91 (1945)."
"Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United States v. Harriss,347 U. S. 612, 347 U. S. 617 (1954). In determining the sufficiency of the notice, a statute must of necessity be examined in the light of the conduct with which a defendant is charged. Robinson v. United States,324 U. S. 282 (1945)."
Since appellee could have had no reasonable doubt that his public statements urging Negro enlisted men not to go to Vietnam if ordered to do so were both "unbecoming an officer and a gentleman," and "to the prejudice of good order and discipline in the armed forces," in violation of the provisions of Arts. 133 and 134, respectively, his challenge to them as unconstitutionally vague under the Due Process Clause of the Fifth Amendment must fail.
We likewise reject appellee's contention that Arts. 133 and 134 are facially invalid because of their "overbreadth."
In Gooding v. Wilson, 405 U.S. at 405 U. S. 520-521, the Court said:
"It matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when 'no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution,' Dombrowski v. Pfister,380 U. S. 479, 380 U. S. 491 (1965), the transcendent value to all society of constitutionally protected expression is deemed to justify allowing"
"attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. . . ."
While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it. Doctrines of First Amendment overbreadth asserted in support of challenges to imprecise language like that contained in Arts. 133 and 134 are not exempt from the operation of these principles. The United States Court of Military Appeals has sensibly expounded the reason for this different application of First Amendment doctrines in its opinion in United States v. Priest, 21 U.S.C.M.A. at 570, 45 C.M.R. at 344:
"In the armed forces, some restrictions exist for reasons that have no counterpart in the civilian
community. Disrespectful and contemptuous speech, even advocacy of violent change, is tolerable in the civilian community, for it does not directly affect the capacity of the Government to discharge its responsibilities unless it both is directed to inciting imminent lawless action and is likely to produce such action. Brandenburg v. Ohio, [395 U.S. 444 (1969)]. In military life, however, other considerations must be weighed. The armed forces depend on a command structure that, at times must commit men to combat, not only hazarding their lives but ultimately involving the security of the Nation itself. Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected. United States v. Gray, [20 U.S.C.M.A. 63, 42 C.M.R. 255 (1970)]."
"[e]mbedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court."
We further commented in that case that
"[i]n the past, the Court has recognized some limited exceptions to these principles, but only because of the most 'weighty countervailing policies.'"
Id. at 413 U. S. 611. One of those exceptions "has been carved out in the area of the First Amendment." Ibid. In the First Amendment context, attacks have been permitted
"on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity,"
This Court has, however, repeatedly expressed its reluctance to strike down a statute on its face where there were a substantial number of situations to which it might be validly applied. Thus, even if there are marginal applications in which a statute would infringe on First Amendment values, facial invalidation is inappropriate if the "remainder of the statute . . . covers a whole range of easily identifiable and constitutionally proscribable . . . conduct. . . ." CSC v. Letter Carriers,413 U. S. 548, 413 U. S. 580-581 (1973). And the Court recognized in Broadrick, supra, that "where conduct, and not merely speech, is involved," the overbreadth must "not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." 413 U.S. at 413 U. S. 615. Here, as the Manual makes clear, both Art. 133 and Art. 134 do prohibit a "whole range of easily identifiable and constitutionally proscribable . . . conduct."
Both Broadrick and Letter Carriers involved basically noncriminal sanctions imposed on federal and state employees who were otherwise civilians. The Uniform Code of Military Justice applies a series of sanctions, varying from severe criminal penalties to administratively imposed minor sanctions, upon members of the military. However, for the reasons dictating a different application of First Amendment principles in the military context described above, we think that the "weighty countervailing policies,'" Broadrick, supra, at 413 U. S. 611, which permit the extension of standing in First Amendment cases involving civilian society, must be accorded a good deal less weight in the military context.
There is a wide range of the conduct of military personnel to which Arts. 133 and 134 may be applied without infringement of the First Amendment. While there may lurk at the fringes of the articles, even in the light of their narrowing construction by the United
States Court of Military Appeals, some possibility that conduct which would be ultimately held to be protected by the First Amendment could be included within their prohibition, we deem this insufficient to invalidate either of them at the behest of appellee. His conduct, that of a commissioned officer publicly urging enlisted personnel to refuse to obey orders which might send them into combat, was unprotected under the most expansive notions of the First Amendment. Articles 133 and 134 may constitutionally prohibit that conduct, and a sufficiently large number of similar or related types of conduct so as to preclude their invalidation for overbreadth.
Appellee urges that, should we disagree with the Court of Appeals as to the constitutionality of Arts. 133 and 134, we should nonetheless affirm its judgment by invalidating his conviction under Art. 90. He contends that to carry out the hospital commandant's order to train aide men in dermatology would have constituted participation in a war crime, and that the commandant gave the order in question, knowing that it would be disobeyed, for the sole purpose of increasing the punishment which could be imposed upon appellee. The Court of Appeals observed that each of these defenses was recognized under the Uniform Code of Military Justice, but had been resolved against appellee on a factual basis by the court-martial which convicted him. The court went on to say that:
"In isolation, these factual determinations adverse to appellant under an admittedly valid article are not of constitutional significance, and, resultantly, are beyond our scope of review."
478 F.2d at 797. See Whelchel v. McDonald,340 U. S. 122 (1950). We agree with the Court of Appeals.
Appellee in his brief here mounts a number of alternative attacks on the sentence imposed by the court-martial, attacks which were not treated by the Court of Appeals in its opinion in this case. To the extent that these points were properly presented to the District Court and preserved on appeal to the Court of Appeals, and to the extent that they are open on federal habeas corpus review of court-martial convictions under Burns v. Wilson,346 U. S. 137 (1953), we believe they should be addressed by the Court of Appeals in the first instance.
MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.
See 50 U.S.C. App § 454(i)
Article 90 of the Uniform Code of Military Justice, 10 U.S.C. § 890, provides:
"Any person subject to this chapter who --"
"(1) strikes his superior commissioned officer or draws or lifts up any weapon or offers any violence against him while he is in the execution of his office; or"
"(2) willfully disobeys a lawful command of his superior commissioned officer;"
"shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, and if the offense is committed at any other time, by such punishment, other than death, as a court-martial may direct."
Article 133 of the Uniform Code of Military Justice, 10 U.S.C. § 933, provides:
"Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct."
Article 134 of the Uniform Code of Military Justice, 10 U.S.C. § 934, provides:
"Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court."
The specification under Art. 134 (Charge II) alleged in full:
"In that Captain Howard B. Levy, U.S. Army, Headquarters and Headquarters Company, United States Army Hospital, Fort Jackson, South Carolina, did at Fort Jackson, South Carolina, on or about the period February, 1966, to December, 1966, with design to promote disloyalty and disaffection among the troops, publicly utter the following statements to divers enlisted personnel at divers times: 'The United States is wrong in being involved in the Viet Nam War. I would refuse to go to Viet Nam if ordered to do so. I don't see why any colored soldier would go to Viet Nam; they should refuse to go to Viet Nam and, if sent, should refuse to fight because they are discriminated against and denied their freedom in the United States, and they are sacrificed and discriminated against in Viet Nam by being given all the hazardous duty and they are suffering the majority of casualties. If I were a colored soldier, I would refuse to go to Viet Nam, and if I were a colored soldier and were sent, I would refuse to fight. Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children,' or words to that effect, which statements were disloyal to the United States, to the prejudice of good order and discipline in the armed forces."
The specification under Art. 133 (Additional Charge I) alleged that appellee
"did . . . at divers times during the period from on or about February 1966 to on or about December, 1966, while in the performance of his duties at the United States Army Hospital, Fort Jackson, South Carolina, wrongfully and dishonorably make the following statements of the nature and to and in the presence and hearing of the persons as hereinafter more particularly described, to-wit: (1) Intemperate, defamatory, provoking, and disloyal statements to special forces enlisted personnel present for training in the United States Army Hospital, Fort Jackson, South Carolina, and in the presence and hearing of other enlisted personnel, both patients and those performing duty under his immediate supervision and control and dependent patients as follows: "I will not train special forces personnel because they are liars and thieves,' `killers of peasants,' and `murderers bf women and children,'" or words to that effect; (2) Intemperate and disloyal statements to enlisted personnel, both patients and those performing duty under his immediate supervision and control as follows: "I would refuse to go to Vietnam if ordered to do so. I do not see why any colored soldier would go to Vietnam. They should refuse to go to Vietnam; and, if sent, they should refuse to fight because they are discriminated against and denied their freedom in the United States and they are sacrificed and discriminated against in Vietnam by being given all the hazardous duty, and they are suffering the majority of casualties. If I were a colored soldier, I would refuse to go to Vietnam; and, if I were a colored soldier and if I were sent to Vietnam, I would refuse to fight," or words to that effect; (3) Intemperate, contemptuous, and disrespectful statements to enlisted personnel performing duty under his immediate supervision and control as follows: "The Hospital Commander has given me an order to train special forces personnel, which order I have refused and will not obey," or words to that effect; (4) Intemperate, defamatory, provoking, and disloyal statements to special forces personnel in the presence and hearing of enlisted personnel performing duty under his immediate supervision and control, as follows: "I hope when you get to Vietnam, something happens to you and you are injured," or words to that effect; all of which statements were made to persons who knew that the said Howard B. Levy was a commissioned officer in the active service of the United States Army."
United States v. Levy, CM 416463, 39 C.M.R. 672 (1968), petition for review denied, No. 21,641, 18 U.S.C.M.A. 627 (1969). Appellee also unsuccessfully sought relief in the civilian courts. Levy v. Corcoran, 128 U.S.App.D.C. 388, 389 F.2d 929, application for stay denied, 387 U.S. 915, cert. denied, 389 U.S. 960 (1967); Levy v. Resor, 17 U.S.C.M.A. 136, 37 C.M.R. 399 (1967); Levy v. Resor, Civ. No. 67-442 (SC July 5, 1967), aff'd per curiam, 384 F.2d 689 (CA4 1967), cert. denied, 389 U.S. 1049 (1968); Levy v. Dillon, 286 F.Supp. 593 (Kan.1968), aff'd, 415 F.2d 1263 (CA10 1969).
United States v. Howe, 17 U.S.C.M.A. 165, 37 C.M.R. 429 (1967); United States v. Sadinsky, 14 U.S.C.M.A. 563, 34 C.M.R. 343 (1964); United States v. Frantz, 2 U.S.C.M.A. 161, 7 C.M.R. 37 (1953).
Manual for Court-Martial